City of Idaho Falls v. Grimmett

• Decision Date: 25 September 1941
• Docket Number: 6833
• Citation: 63 Idaho 90,117 P.2d 461
• Parties: CITY OF IDAHO FALLS, a municipal corporation, Respondent, v. J. L. GRIMMETT, WESTON SIMPSON and EAST SIDE CABINET COMPANY, a corporation, Appellants
• Court: Idaho Supreme Court

117 P.2d 461

63 Idaho 90

CITY OF IDAHO FALLS, a municipal corporation, Respondent, v. J. L. GRIMMETT, WESTON SIMPSON and EAST SIDE CABINET COMPANY, a corporation, Appellants

No. 6833

Supreme Court of Idaho

September 25, 1941

MUNICIPAL CORPORATIONS-ZONING ORDINANCE-POLICE POWER-PROOF OF ORDINANCE-EVIDENCE-INJUNCTION.

1. Where printed zoning ordinance was duly certified by city clerk and offered and admitted in evidence in suit to enjoin defendants from maintaining a planing mill in a residence zone in violation of ordinance, there was compliance with statute prescribing method of proof of ordinances. (I. C. A sec. 49-1805.)

2. If any preliminary matter in the adoption of a zoning ordinance was overlooked or neglected, pleading and proof of such omission or neglect devolved upon party resisting admission of ordinance in evidence in suit to enjoin defendants from maintaining a planing mill in a residence zone in violation of ordinance.

3. In suit by second class city to enjoin defendants from maintaining a planing mill in a residence zone, in violation of zoning ordinance, record did not support defendants' contention that ordinance was void because city council had failed to appoint a zoning commission, as required by statute, to make investigation and recommend boundaries of districts before passage of ordinance. (I. C. A. sec 49-406.)

4. The statute respecting zoning commissions in first and second class cities does not require that such commissions consist of persons who are not members of city council. (I. C. A. sec. 49-406.)

5. Zoning ordinances, passed in conformity with legislative authority, are a proper exercise of the "police power" of a municipality and are purely "governmental."

6. Where a given situation admittedly presents a proper field for exercise of police power by a municipality, the extent of its invocation and application is a matter lying largely in legislative discretion, and every presumption is to be indulged in favor of exercise of such discretion, unless arbitrary action is clearly disclosed.

7. A municipality may be "estopped" or required to respond in damages for unlawful conduct in exercise of its proprietary or business powers, but such rule does not extend to exercise of police power.

8. The police power of a municipality cannot be bartered away even by express contract.

9. In suit by a second class city to restrain defendants from maintaining a planing mill in a residence zone in violation of zoning ordinance, where defendants had been authorized by city to construct a contractor's workshop on property in question, evidence warranted judgment for city on ground that after permit for workshop was granted defendant had installed certain equipment in building on property and had used the property for a planing mill and that maintenance of mill was a violation of ordinance.

10. A planing mill and lumber yard was not a "workshop" within permit issued by second class city authorizing defendants to construct a contractor's workshop on property in a residence zone.

11. Where defendants obtained a permit authorizing construction of a contractor's workshop on property located in a residence zone in a second class city, defendants were chargeable with knowledge, when permit was procured, that a zoning ordinance was in force and that city officers and agents had no authority to disregard it.

12. If defendants, who obtained a permit from second class city authorizing construction of a contractor's workshop on property zoned as residential, procured permit under exception in zoning ordinance authorizing city council to vary application of ordinance under certain conditions, it was incumbent on defendants, in city's suit to restrain defendants from maintaining a planing mill on the property to plead and prove the exception made in defendants' behalf and compliance therewith by defendants and that the authority had not been withdrawn or revoked in a lawful manner.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. Jay L. Downing, Presiding Judge.

Action for injunction, to restrain and enjoin defendants from maintaining and operating a planning mill in residence zone. Judgment for plaintiff. Affirmed.

Judgment affirmed with costs to respondent.

Alvin Denman, for Appellants.

When a building permit is issued by the proper officials and acted upon by the person obtaining the permit, it then confers upon such person a vested right. (City of Buffalo vs. Chadeayne (N. Y.), 31 N.E. 444; Pratt v. City of Denver (Colo.), 209 P. 508; Rehmann v. Des Moines (Ia.), 40 A. L. R. 927; State v. City of Spokane (Wash.), 116 P. 880; City of Denver v. Spiegleman (Colo.), 231 P. 204; Wickstrom v. Laramie (Wyo.), 262 P. 23; Gen. Baking Co. v. Board of Street Coms. (Mass.), 136 N.E. 245.)

A litigant who has acted illegally, or who has encouraged, invited or contributed to the injury sought to be enjoined, will be estopped to maintain injunction proceedings under the doctrine that he who comes into equity must come in with clean hands. (32 C. J. 68, 69; Adams v. Birmingham Realty Co. (Ala.), 45 S. 891.)

The doctrine is applicable to actions brought by municipal corporations to enjoin infractions of zoning ordinances. (Boise Dev. Co. v. Boise, 30 Idaho 688; City of Twin Falls v. Harlan, 27 Idaho 780; Keane v. City of Portland (Ore.), 235 P. 677.)

The burden is on the city to allege and prove that every statutory requirement in enacting the zoning ordinance was complied with. (Glens Falls v. Standard Oil Co., 215 N.Y.S. 354; Smith v. Canyon Co. School Dist., 39 Idaho 232; Gorman v. County Commissioners, 1 Idaho 556; Conn. v. Gano (Ohio), 13 Am. Dec. 639; Scott v. Watkins (Col.), 157 P. 3; Jensen v. Berry & Ball Co., 37 Idaho 394.)

Ralph L. Albaugh, for Respondent.

Ordinance passed by municipality acting within its authority is presumptively valid and where carried for several years, it is conclusively presumed to have been properly passed and published. (Ex parte Draughn, 26 P.2d 437 (Okla.); Hopkins vs. Galland, 21 P.2d 553 (Calif.); Whitson vs. City of Ada, 44 P.2d 829 (Okla.)

The introduction of the ordinance book containing a certain ordinance and showing its passage by the Board, with the vote thereon, together with evidence as to its publication is prima facie proof of its validity, though the regularity of the proceedings was denied. (Merced Co. vs. Fleming, 43, P. 392, (Calif.)

AILSHIE, J. Givens, Holden, JJ., and MORGAN, J., concurring. Budge, C.J., did not participate.

OPINION

AILSHIE, J.

Respondent, a municipal corporation, is a city of the second class. About August 18, 1928, Ordinance No. 431 was enacted by the mayor and city council, by the terms of which the city was divided into five zoning districts as follows: "A" residence zone; "B" commercial zone; "C" industrial zone; "D" quiet zone; and "E" unrestricted zone.

About December 6, 1934, appellant Grimmett, being the owner of Lots 47 and 48, Block 53 of Crow's Addition to respondent city, being in residence zone "A," made application in writing to the mayor and council, "for a permit to construct a Contractor's Workshop, between 14th and 15th on Lee," the lots above mentioned. The building inspector's report gave the plan specification as "Widening present shop by moving south out from building--20. All walls to be stuccoed." The carbon copy thereof has the following additional sentence written, "This is to be used for his own work only. " Mr. Berg, the building inspector, testified that these words were added, and the council ordered this addition made to the permit, "Because it was upon that condition that the City Council passed the permit." However, this evidence was ordered stricken. Permit issued to appellant Grimmett, approved December 6, 1934, and thereafter Grimmett enlarged the building; the actual width of which, when completed, was 26 feet, six feet wider than the permit specified. Appellants contended that the following machinery would be used in the shop: "three-phase electric power tools such as an emery stone, circle saws, sanding machine, jointers, surfacer, band saw, rip saw, sticker, chisel mortiser and sh[o]per;" that a special transformer was installed at great expense to appellants, making it possible to operate the electric power tools.

In the month of March, 1937, appellants, Grimmett and Simpson, organized a corporation, known as the East Side Cabinet Company, owning more than 90% of the outstanding capital stock. They have, ever since that time, and now are, operating and conducting the business as a corporation.

October 26, 1939, complaint was filed by the city against appellants praying for the issuance of an injunction, restraining and enjoining the defendants (appellants) from maintaining or operating a planing mill, etc., or using the premises for any purpose other than a "contractor's work shop for the storage of hand tools and for working lumber by hand." The cause was heard December 19, 1939. Findings of fact and conclusions of law were made and a decree was entered June 17, 1940, ordering "that a permanent injunction issue out of this Court addressed to each and all of the above named defendants, to-wit: J. L. Grimmett, Weston Simpson and the East Side Cabinet Company, a corporation, and their agents, servants and employees and all others acting in their aid or assistance, or in aid or assistance, or in conjunction with either or any of them, forever restraining and enjoining them from maintaining or operating on Lots 47 and 48, Block 53 Crow's Addition to the City of Idaho Falls, Idaho, any electric motors or power-driven machinery and equipment for the purpose of sawing, working or finishing lumber and from storing lumber on said...